After years of Deferred Action for Childhood Arrivals (DACA) being locked in various court battles and finally making it to the Supreme Court and actually winning, thousands of individuals had a renewed sense of hope and new energy with this dramatic conclusion to the DACA fight. Equally dramatic, but in the opposite way, was the news on July 28th that new DACA filings would actually be rejected by US Citizenship and Immigration Services (USCIS) without even being reviewed and further, that ongoing renewal requests would only be granted in 1 year increments. Although the Trump administration has not commented further on their plans to terminate the program, many immigration experts predict this will occur in the near future.
My job as an immigration expert is not to downplay the situation nor to create panic, but to prepare my clients and readers for whatever possibilities exist if the program is finally terminated. This information is important for those who were not able to receive DACA, but critically important to those currently protected by the program. So, if DACA is finally terminated for everyone, what specifically does this mean for those who have enjoyed DACA protection for years?
As a reminder, DACA is and always has been a temporary protection from deportation with the attached right to obtain the authority to work in the US. That’s it. Although this is a very powerful protection, it never has granted any legal immigration status for its holders. What this means is that the actual and complete termination of the DACA program for everyone places past recipients in the same position as those who never received the protection. Past DACA holders will be treated exactly the same as any child or adult without protection from deportation. In other words, having protected status in the past will NOT give you protection in the future, unless Congress creates a new process or a new protection.
So, my recommendation is for the people who may soon be exposed to the deportation process to start looking at other options to remain in the US. For most, this is limited to green cards through family members such as spouses, parents or siblings. If DACA is permanently terminated, one important protection that could still be of benefit to those seeking green cards through family relationships would be for those who obtained DACA protection prior to reaching the age of 18. For these individuals, the automatic punishments associated with living in the US without a visa do not apply until after a child turns 18 years old.
If a person received DACA prior to turning 18 years old and maintained that status, there would not be any period of time where the person was “unprotected” and they would not be punished for what is called “unlawful presence” and would not receive an automatic 10 year bar when they leave the country to attend their green card interview. This may not sound like much of a benefit, but let me assure you it is a significant advantage to those who qualify since they would not need to go through the difficult and expensive process of fighting for a waiver.